24 FLRA No. 16
NATIONAL ASSOCIATION OF
AGRICULTURE EMPLOYEES
Union
and
U.S. DEPARTMENT OF AGRICULTURE,
ANIMAL AND PLANT HEALTH INSPECTION
SERVICE, PLANT PROTECTION AND
QUARANTINE PROGRAM
Agency
Case No. 0-NG-1280
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of the following provision of a locally negotiated
supplemental agreement disapproved by the Agency head as provided in
section 7114(c)(4) of the Statute:
Travel and per diem for negotiations and other activities directly
related to negotiations shall be negotiated.
We find the provision to be negotiable.
II. Positions of the Parties
The Agency contends that payment of travel and per diem expenses is
specifically provided for by law and the provision is therefore
nonnegotiable because it does not concern a condition of employment of
bargaining unit employees within the meaning of section 7103(a)(14)(C)
of the Statute. The Agency also argues that the decision of the Supreme
Court in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89
(1983) (BATF) requires a conclusion that travel and per diem payments
for employees engaged in union representational activities is not within
the duty to bargain. The Agency contends, therefore, that the
Authority's decisions in National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986),
petition for review filed sub nom. Department of the Treasury, U.S.
Customs Service v. FLRA, No. 86-1198 (D.C. Cir. March 27, 1986) and
American Federation of Government Employees, AFL-CIO, National Council
of Federal Grain Inspection Locals and U.S. Department of Agriculture,
Federal Grain Inspection Service, 21 FLRA No. 21 (1986), petition for
review filed sub nom. U.S. Department of Agriculture, Federal Grain
Inspection Service v. FLRA, No. 86-1295 (D.C. Cir. May 21, 1986), are
incorrect. The Agency maintains that for authorization of payment for
travel and per diem expenses to be consistent with law and regulation it
"can only be made as a unilateral decision of management, based on a
case-by-case review of the circumstances of each proposed travel
situation," and not through negotiation. Agency Statement of Position
at 6. Finally, the Agency argues that the provision is inconsistent
with section 7101(b) of the Statute because whatever action it takes
would involve it in "lengthy and costly litigation," which is contrary
to the accomplishment of an effective and efficient government. Agency
Statement of Position at 8.
The Union states that the provision does not require payment of
travel and per diem expenses but only a commitment by the Agency to
negotiate about such payment when the issue arises. The provision is
negotiable under the Authority's decisions in Customs Service and
Federal Grain Inspection Service, the Union argues, because in those
decisions the Authority rejected each of the arguments made by the
Agency in this case. The Union contends that the Agency's one new
argument, that the provision would result in costly litigation contrary
to section 7101(b) is a "patent fallacy" because it would mean that any
negotiability dispute would be contrary to the Statute. Union Response
to Agency Statement of Position at 5.
III. Analysis and Conclusion
A. The Provision Concerns a Condition of Employment
In Customs Service, the Authority rejected the same argument as that
made here, namely, that a proposal relating to travel and per diem for
employee union representatives did not concern conditions of employment
of bargaining unit employees. For the reasons expressed in that
decision, the Authority finds that the provision concerns a condition of
employment of bargaining unit employees.
B. The Provision Is Not Inconsistent With Federal Law and
Government-wide Rules and Regulations
In BATF the Supreme Court held that payment of travel and per diem
expenses for employees engaged in union representational activities was
not required by the Statute. The Supreme Court did not hold that
agencies and unions were precluded by law from negotiating over the
payment of such expenses, only that payment was not required by law.
In Customs Service we rejected the same argument which the Agency
makes here, namely, that payment of travel and per diem expenses for
union representatives is inconsistent with law and regulation and
therefore nonnegotiable. We found that under the Travel Expense Act, 5
U.S.C. Sections 5701 et seq., and the Federal Travel Regulations (FTRs),
41 CFR, Part 101-7, as interpreted by the Comptroller General, 46 Comp.
Gen. 21 (1966), agencies have discretion to make determinations that
travel in the context of union activity is sufficiently within the
interest of the Government to constitute official business. Following
this determination, otherwise proper travel and per diem expenses may be
paid from agency funds. Contrary to the Agency's argument, nothing in
these authorities requires that this necessary determination be made
only by management and only on a case-by-case basis. The Agency does
not argue that travel connected with negotiations or activities related
to negotiations could not meet this required standard. /2/
Moreover, the Authority has consistently held that in the absence of
a demonstration to the contrary, proposals providing for the payment of
travel and per diem expenses for union representatives would not prevent
management from making individual case-by-case determinations as to the
propriety under the FTRs of authorizing particular payments. National
Labor Relations Board Union and National Labor Relations Board, 22 FLRA
No. 55 (1986), petition for review filed sub nom. National Labor
Relations Board v. FLRA, No. 86-1504 (D.C. Cir. Sept. 8, 1986). Compare
National Association of Agricultural Employees and U.S. Department of
Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45
(1986) (Union Proposal 2) (Authority unable to conclude based on the
record in the case that the provision would allow for compliance with
law and regulation.) There is nothing in the provision in this case
which prevents the Agency from complying with the requirements of law
and regulation. In fact, since this provision provides for bargaining
on such matters "as the issue arises," it clearly is not inconsistent
with any requirement under law and regulation for case-by-case
determinations. Compare National Association of Agriculture Employees
and U.S. Department of Agriculture, Animal and Plant Health Inspection
Service, 22 FLRA No. 45 (1986) (Union Proposal 1 was a "general request
to bargain" and it was not sufficiently specific and delineated to meet
the conditions for review set forth in the Authority's Regulations).
Finally, as to the Agency's section 7101(b) argument, in our opinion the
possibilities alluded to by the Agency constitute no basis for reversing
the conclusion reached in Customs Service.
Based on the foregoing analysis, the Authority finds that the
provision concerns a condition of employment and is not inconsistent
with law or Government-wide regulation. Therefore, the provision is
within the duty to bargain. /3/
IV. Order
Pursuant to section 2424.10 of the Authority's Rules and Regulations,
the Agency must rescind its disapproval of the disputed provision, which
was bargained on and agreed to by the local parties.
Issued, Washington, D.C., November 21, 1986.
Jerry L. Calhoun, Ch